Paul v. Fulton

Ryland, Judge,

delivered the opinion of the court.

In this case, the court below should have sustained the plaintiff’s motion to review the finding of the facts made by the court in respect to the question of the trust in favor of the plaintiffs, and also in regard to notice by Fulton. The court omits to find any thing in respect of the interest, title or estate of the plaintiffs, the heirs of Gabriel Paul, in and to the lands or the money arising on its sale. The finding shows “ that in June, 1837, René Paul and his children, Gabriel R. Paul, Edmund W. Paul, Emilie Paul, Louise Paul, Tullia Paul, and Julia S. Paul, were tenants in common with Gabriel Paul and his'children, Adolphe Paul, Estelle Paul, and Therese, in the lands and premises in dispute ; that certain proceedings were had in a suit in partition between these tenants in common, and that the land was sold by commissioners appointed for that purpose, and that René Paul became the purchaser in August, 1838; that René Paul received a deed from the commissioners for the land; that Paul paid no money to the commissioners for the land except the costs of the proceedings in partition ; that at the time of the execution of the deed by the commissioners to said Paul, it was understood that he was to furnish to them the receipt of himself and his brother Gabriel for the amount of the purchase money of said land ; that one-half of the amount paid by said René Paul for the costs of said partition suit was af- *161 terwards paid to Mm by Gabriel Paul; that neither René or Gabriel ever paid any money on said sale, except the costs of said suit; that on the same day of the date of the deed from the commissioners, August 21,1838, René Paul declared in writing that the purchase of said land at said commissioners’ sale was made on the joint account, of himself and Gabriel ; and René Paul again, in April, 1841, stated, in a memorandum addressed to Gabriel, that said Gabriel had one-half interest in the land in question; that during all this time, and up to August, 1843, there were transactions between the brothers Gabriel and René, in regard to the purchase and sale of lands, both in the city and county of St. Louis, on their joint account; that on the 14th day of August, 1843, René Paul claimed a balance as due to him on account of their general transactions. Gabriel Paul died in 1846, leaving heirs, Adolphe, Estelle and Therese; and René Paul died in May, 1851, leaving heirs, Gabriel R., Edmund W., Emilie, Louise and Tullia; that René, by his will, (after specifically devising one lot of land,) directed his executors to sell and convey absolutely all his remaining real and personal estate, and directed the disposition of the proceeds thereof; that in June, 1852, in pursuance of the directions contained in said will, the defendant, Marshall Brotherton, sold and conveyed the land in question to ¥m. Pulton and the trustee of Louise A. Gosnell, wife of George Gosnell, and daughter of René. Paul, for the sum of $5,150.80; that in payment for the same, the receipt of Mrs. Gosnell and her husband was taken on, account of money coming to her under her father’s will for a portion of the purchase money, and for the balance notes were taken, and that there is still due and unpaid of said purchase money the sum of $2,575.40 and interest thereon;. that on the 6th day of May, 1853, Louise Gosnell conveyed, her interest to said Pulton; that neither said Pulton nor Louise Gosnell had any actual notice of the claims .of the plaintiffs to said land until the commencement of this suit; and that Gabriel and René Paul were at variance for many years, and were reconciled to each other about one year be *162 fore the death of Gabriel. Thereupon the court declares that the plaintiffs are not entitled to the relief asked for in this petition against the defendants.”

It will be seen from the finding that the court does not touch the subject of the trust — does not, except by inference, state any thing about the rights of claims of the plaintifFs. The land was sold under partition proceedings, bought by René Paul for himself and his brother Gabriel, on their joint account. A deed was made to René Paul alone. No money was paid by either of them for the land — nothing except for costs of suit in partition. The deaths of Gabriel and René Paul follow after some years, without showing any change in their rights to the lands. Now there can not be much doubt but that Gabriel Paul must in equity be considered an equal owner with his brother René of the lands bought at the commissioners’ sale. The heirs of each must succeed to all the rights of the ancestors. The finding of the court in regard to the plaintiffs’ right to the lands should hare been made, and it is erroneous to leave that important matter alone to inference.

In regard to the notice to Pulton, the court ought also to have sustained the motion to review. Prom the evidence presented in the record in regard to this fact, there can be no doubt of his receiving notice of the claim of the plaintiffs before he paid any part of the money; indeed, half the purchase money is still due and unpaid. Pulton can not, under such circumstances, be considered a purchaser without notice. Upon the point of notice to Pulton the authorities place the matter beyond question. Here the plaintiffs claim only one-half of the land purchased by Pulton ; or if he be viewed in the light of an innocent purchaser for valuable consideration, then only half the amount of the consideration money for which the land was sold by Brotherton. The suit in this case was actual notice, and when it was commenced, Pulton had not paid more than half the purchase money for the land. The English equity doctrine is, that for the purchaser to be considered entitled to the favorable posi *163 tion of one buying without notice, there must be an entire payment in full of the consideration money, and the reception of a deed or conveyance from the grantor ; that the sale must be consummated and completed on both sides before notice given or communicated. In the United States the doctrine has not been quite so rigid. ■ Payment in full, with? out a deed, has been considered enoTm^S^gs^^is^^he purchaser before notice, and even it ha^^t^0^^4l#^mment in part has been considered in.somelgaslsisufficient t5 ¡frotec,^ him for so much or such portion. \

We are at a loss to ascertain t* grounds on which the court below decided the case. Tl^SS^^^^^jíy the Court, strip the defendant Pulton o^alL ria-ht^^rWe held as an innocent purchaser without notice.'^The claim of the plaintiffs does not seek for more than half the land, or half the purchase money. Pulton has not yet paid more than half of the purchase money; so, giving to him the most favorable position that has yet been allowed by any of the courts of our sister states, and he can not be considered an innocent purchaser without notice in this case. “ It is well settled, moreover, that to entitle a purchaser to protection the consideration of the purchase must not only be valuable but must have been wholly or partially paid or executed. Vattier v. Hude, 7 Pet. 252 ; Doswell v. Buchanan’s Exec’r, 3 Leigh, 365 ; Dellard v. Crocker, 1 Speer Eq. 20 ; Bash v. Bash, 3 Stobhart’s Eq. 131; Kyle v. Tait’s Adm’r, 6 Grattan, 44; Cole v. Scott, 2 Wash. 141 .” (2 White’s Lead. Cas. in Equity.) It is held both in this country and in England that actual payment is in general necessary to the character of a purchaser for valuable consideration ; and that giving-security or executing an obligation for payment will not be sufficient. (High v. Batte, 10 Yerg. 555 ; Christie v. Bishop, 1 Barb. Ch. 105 ; Murray v. Ballou, 1 Johns. Ch. 566 ; Hunter v. Sumrall, 3 Littell, 62 .) Payment in bills or notes of third persons will however ■ be equivalent in most. cases to actual payment, (Jewett v. Palmer, 7 Cow. 651 ) ; and the same effect would seem tó be due to payment in the notes of *164 the purchaser, if negotiable in their character and actually negotiated so as to render him liable to pay them at all events. (Frost v. Beekman, 1 Johns. Ch. 288 ; Freeman v. Deeming, 8 Sandford, 327; 2 White Lead. Cas. Eq. 113.) In Wormley v. Wormley, 8 Wheat. 449 , Mr. Justice Story ‘said: “ It is a settled rule in equity that a purchaser without notice, to he entitled to protection, must not only be so at the time of the contract or conveyance, but must be so at' the time of the payment of the purchase money.”

We do not consider it necessary here to make the heirs of René Paul defendants. The land sold and sued for in this action was sold under the will of René Paul by his executor— the will directing the" sale of all his remaining property, after a special legacy of a lot, and directing a distribution of the proceeds. Fulton was a proper party; so was Brotherton, the executor; but we can not see any objection to the relief sought for by the plaintiff by reason of their failure to make the heirs of René Paul parties defendant.'

The petition sets out facts showing a case fully within the jurisdiction of the Land Court. That court then had jurisdiction at the commencement. Now if, in the progress of the case, the facts should so turn out that some other court might also lawfully entertain jurisdiction and give the relief, yet, in the opinion of this court, this circumstance does not and should not deprive the Land Court of its jurisdiction and authority to go on with the case, and give the relief which the nature of the facts and circumstances require. Having once obtained jurisdiction in the case, if the facts afterwards disclosed would, if known, have authorized a proceeding, differently instituted, in another court, still the Land Court should go on and settle the controversy, and not stop short and turn the plaintiffs out to seek a new jurisdiction at the expense of two suits, when one might answer. The judgment below is reversed, and the cause remanded;

Judge Scott concurring; Judge Leonard absent.